Register analysis offers window into consumer protection process

Azella Hawkins, left, with her daughter Winnie Perry, four years after Hawkins suffered brain damage from an oxygen shortage following a July 2003 knee surgery. Hawkins' anesthesiologist, Bryan Chan, was accused of repeated negligent acts, gross negligence and poor record keeping, which carried a minimum recommended penalty of five years of probation. He negotiated for a public reprimand and a series of classes. COURTESY OF WINNIE PERRY

Every board and bureau under the Department of Consumer Affairs publishes a list of recommended penalties for the major violations they enforce. But while department officials say the agencies generally follow their own recommendations, there's nothing in the law that actually requires them to do so – even in the most serious cases.

To see how often the agencies follow their own recommendations, the Register reviewed the enforcement decisions of six boards and one bureau from July 2008 to June 2011, focusing on cases where consumers and patients suffered a loss of life, limb (permanent injury) or, in some instances, money. For each of theses cases, the Register tracked whether the penalties imposed met the minimum recommendations, and whether the decisions were reached through a hearing or a negotiated settlement.

The findings provide a small window into the state's discipline of questionable practitioners:

The Medical Board of California, which oversees medical doctors, concluded more than 1,000 cases over the period analyzed. Many of the cases involved physicians who had been busted in other jurisdictions, or who allegedly had problems with drugs or their prescribing practices. But 76 of the cases dealt with patients who had been killed or permanently injured, according to the Register's analysis. Of those serious cases, 81 percent were settled via negotiated settlement – and 63 percent of the serious cases were settled with penalties below the board's own recommendations. Three-fourths of the time, when the board settled a case in which a patient was seriously harmed or killed, it agreed to penalties below its own recommendations, the Register found.

The Osteopathic Medical Board of California, which regulates doctors of osteopathic medicine (D.O.s), oversees a population roughly one-twentieth the size of the Medical Board's and had only three cases in which a consumer died or was permanently injured over the period analyzed. It concluded all three of those cases by negotiated settlement. Two of the settlements met recommendations. The third, for Dr. Alan Seow-Meng Pan, was settled for 35 months of probation, when the recommendations said he should have gotten five years.

The Dental Board concluded 240 cases in the period analyzed. Fifteen involved patients who were killed or permanently injured. Ten were settled through negotiations. Six of the negotiated settlements were for discipline that fell below the board's recommendations. During the three years analyzed, the board lowered its recommended minimum penalty for gross negligence and repeated acts of negligence from five years of probation to two.

Some boards were less lenient. The boards regulating vocational nurses/psychiatric technicians and optometrists didn't settle a single permanent-harm case for penalties below their own guidelines during the period analyzed. The Board of Accountancy never did it either in cases where consumers lost money. The Bureau of Automotive Repair did, but only in about 10 percent of cases where consumers allegedly were swindled. These four regulatory entities agreed to negotiated settlements in at least 42 percent of the serious cases examined by the Register.

Official statistics for the boards and bureaus offer no hint of these trends because the published figures fail to account for patient injuries, negotiated settlements or the specifics of enforcement. For instance, the Board of Vocational Nursing and Psychiatric Technicians reported that it gave probation to 53 licensees in fiscal year 2010-11, but those numbers don't reveal the length of the probation, the severity of the accusations involved or whether the penalties actually fell within the board's disciplinary guidelines. They also don't call out cases where the discipline was negotiated.

Russ Heimerich, spokesman for the Department of Consumer Affairs, said the boards will be able to "capture and analyze, and perhaps publish" more detailed data about the boards' enforcement tendencies as a new database system becomes operational over the next two years.

Asked why the boards aren't required to follow their own recommendations, Heimerich said in a written statement: "Such a law would lead to a cookie-cutter, one-size-fits-all approach to administrative discipline and leave no room for consideration of mitigating circumstances, perhaps denying due process."

The agencies in question generally recommended a minimum penalty of two, five or seven years of probation, depending on the charges and the agency, for the serious cases analyzed by the Register.

Lisa McGiffert, director of the Safe Patient Project of Consumers Union, said she didn't think it was too much to ask that licensees accused in such serious cases be monitored for the full recommended time.

"If they have these guidelines," McGiffert said, "they should use them."

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